External scrutiny

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Judicial decisions

Queensland v Congoo [2015] HCA 17

This matter concerned the extinguishing effect of Military Orders made by the Australian Government during the Second World War. The State of Queensland contended that the Military Orders extinguished native title. The Commonwealth Attorney-General intervened and submitted that there was no extinguishment and that the Military Orders were only intended to regulate rights for the period of the war. On 21 February 2014, a majority of the Full Federal Court of Australia found in favour of the Australian Government (Congoo v Queensland (2014) 218 FCR 358). On 4 September 2014, the State of Queensland was granted special leave to appeal to the High Court. The High Court gave judgment on 13 May 2015 and was evenly divided in opinion, which by operation of paragraph 23(2)(a) of the Judiciary Act 1903, had the effect of affirming the Full Federal Court decision.

Fields & Smith [2015] FamCAFC 57

The Full Court of the Family Court of Australia delivered its judgment in Fields & Smith on 17 April 2015. This case concerned the issue of ‘special contributions’ in property matters under the Family Law Act 1975. The parties were seeking the alteration of property interests following the breakdown of their marriage of 29 years. The husband argued that his contributions to the assets of the parties warranted greater weight in the overall division. At trial, the property pool was divided 60 per cent to 40 per cent in the husband’s favour in light of the parties’ respective contributions. On appeal, the Full Court concluded that the orders of the trial judge be set aside and the overall division of property and superannuation interests should instead be 50 per cent to each of the parties.

Snedden v Minister for Justice for the Commonwealth of Australia

Daniel Snedden (also known as Dragan Vasiljkovic) was the subject of a determination by the Minister for Justice that he be surrendered to the Republic of Croatia to face prosecution for three war crimes offences. In 2014–15 this was Australia’s longest-running current extradition matter. The Full Federal Court appeal considered whether the Minister’s power to make a surrender determination had expired due to delay, whether Mr Snedden was denied procedural fairness in the making of the surrender determination and whether there was jurisdictional error such as to render the Minister’s decision invalid on the basis of the purported construction of Australia’s international humanitarian law obligations under the Geneva Conventions. In December 2014, the Full Federal Court found in the Minister’s favour on all issues. In May 2015, Mr Snedden was refused special leave to appeal to the High Court on the basis that there was no disputed question of general law and an appeal did not have likely prospects of success.

The High Court’s refusal of leave and the Full Federal Court decision on the issues raised by the application endorse the processes adopted by the department in the manner in which it engages with representations provided by the competing parties and puts those to the Minister for consideration. This case law also provides broader guidance on the administrative law concept of what constitutes the content of procedural fairness in the exercise of discretion.

Hala v Minister for Justice [2015] FCAFC 13

Richard Hala was the subject of a determination by the Minister for Justice that he be surrendered to the Czech Republic to serve a sentence of five years’ imprisonment for a fraud-related offence. This litigation closely follows the issues in the Snedden litigation. In February 2015, the Full Federal Court unanimously upheld the Minister’s surrender determination. In March 2015, Mr Hala made an application for special leave to appeal to the High Court, which is pending.

Pawel Francuziak was the subject of a determination by the Minister for Justice that he be surrendered to the Republic of Poland to face prosecution for child sex offences. Mr Francuziak sought judicial review of this determination. The issues before the Federal Court were whether the Minister applied the wrong test when considering Australia’s non-refoulement obligations in an extradition context and whether the Minister erred because Poland had failed to provide assurances about treatment in prison and limiting any delay in the consideration of any parole application. In May 2015, the Federal Court dismissed the application on both grounds. The decision confirms the way in which the department engages with representations provided by the competing parties and puts those to the Minister for consideration, including through the provision of international law advice. Mr Francuziak has lodged an appeal to the Full Federal Court.

Kommatas v Hellenic Republic [2014] FCA 1224

Michail Kommatas was found eligible for surrender to the Hellenic Republic (Greece) in relation to a sexual offence. Mr Kommatas applied to the Federal Court for a review of the magistrate’s finding of surrender eligibility. The issue before the Federal Court was whether a Greek appellate Court judgment was a ‘warrant’ for the purposes of the Extradition Act 1988. The key findings of the Federal Court were that a warrant issued by the extradition country for the arrest of the person is neither more nor less than an order which empowers a public officer to take a person into custody for the extradition offence according to the law of that extradition country. The judgment also emphasises that the Extradition Act 1988 must be construed having regard to its purpose and intended application – to provide for extradition from Australia to a wide variety of other countries with which Australia chooses to enter into treaty relations acknowledging that the legal systems of those countries will differ in detail. This decision is significant in supporting a practical and broad interpretation of foreign process that does not accord exactly with the equivalent Australian process. This issue arises in both mutual assistance and extradition matters.

Challenges by federal offenders

There were no challenges made by federal offenders to decisions made by the Attorney-General or his delegate in the reporting period. One former federal offender brought an action against the Attorney-General under the Administrative Decisions (Judicial Review) Act 1977 for unreasonable delay in making a decision in relation to referral of the case to a court of appeal. The Federal Court found in favour of the Commonwealth, determining that the Attorney-General was not under the requisite duty to make a decision. The former federal offender has appealed the Federal Court’s decision to the Full Federal Court.

Review of AusCheck decisions

One applicant applied for a review of the decision made by AusCheck under section 29(1) of the Administrative Appeals Tribunal Act 1975 during the reporting period. The appeal was dismissed by the Administrative Appeals Tribunal (AAT).

Review of decisions by the Registrar of Marriage Celebrants

As part of the cost-recovery arrangements for the Marriage Celebrants Programme, which commenced on 1 July 2014, the Registrar of Marriage Celebrants was given a new power to deregister marriage celebrants for failure to pay the celebrant registration charge by the charge payment day. There were 17 applications to the AAT for review of deregistration decisions by the Registrar of Marriage Celebrants, 13 of which related to non-payment of the charge. Of the 17 applications, 9 were withdrawn by the applicants and 5 were settled with consent orders issued by the tribunal. Three applications remained on hand at 30 June 2015.

Reports by parliamentary committees

Joint Standing Committee on Foreign Affairs, Defence and Trade

Inquiry into slavery, slavery-like conditions and people-trafficking

The department coordinated the Government’s response to the Human Rights Sub Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s report on its inquiry into slavery, slavery-like conditions and people-trafficking. The report made eight recommendations, including on initiatives to raise awareness and efforts to address supply chain exploitation. The government accepted one recommendation in full, partially accepted four recommendations, and either accepted in principle or noted the remaining three recommendations.

Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security examined the government’s Bill for a mandatory data retention scheme. The committee recommended that the legislation be passed, subject to amendments to bolster privacy safeguards and oversight arrangements. The committee also recommended that the department undertake a range of additional reviews on policy issues related to access to telecommunications data and telecommunications interception. The government accepted these recommendations, which collectively set out a substantial programme of future policy work for the department.

Parliamentary Joint Committee on Law Enforcement

Inquiry into Crystal Methamphetamine (Ice)

On 18 March 2015, the Parliamentary Joint Committee on Law Enforcement initiated an inquiry into crystal methamphetamine (ice). The department worked closely with the Australian Crime Commission (ACC), Australian Federal Police, Australian Institute of Criminology, Australian Transaction Reports and Analysis Centre and the Immigration and Border Protection Portfolio to develop a joint submission that encompassed investigative, intelligence and policy perspectives on the supply of crystal methamphetamine. The submission highlighted the need for a comprehensive and nationally coordinated response to the ice threat, including supply reduction, demand reduction and harm reduction strategies. The committee has not yet set a reporting date.

House of Representatives Standing Committee on Social Policy and Legal Affairs

Roundtable on Surrogacy Report

The committee hosted roundtables on surrogacy on 26 February 2015 and 6 March 2015. Broad questions around the regulation and practice of surrogacy in Australia and issues surrounding international surrogacy arrangements were discussed. The committee released its Roundtable on Surrogacy Report on 24 March 2015. The report recommended that the Attorney-General refer to the committee an inquiry into the regulatory and legislative aspects of surrogacy.

Senate Legal and Constitutional Affairs Committee

Inquiry into the ability of Australian law enforcement authorities to eliminate gun-related violence in the community

The ability of Australian law enforcement authorities to eliminate gun-related violence in the community was referred to the committee on 19 June 2014 for inquiry and report. The committee examined the number of illicit firearms in Australia, the adequacy of current legislation and resourcing to address technological advances in gun technology, the risk posed by the illicit firearms trade to police and the community, the effect of banning semi-automatic handguns in Australia, and the extent to which there exist anomalies in Australian Government, state and territory firearms laws. The department appeared before the committee on 31 October 2014 to respond to questions about its submission and issues raised in public submissions. The committee tabled its report on 9 April 2015.

The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 was referred to the committee on 17 July 2014 for inquiry and report. The committee examined provisions of the Bill, including a range of measures to improve Commonwealth criminal justice arrangements. The department appeared before the committee on 22 August 2014 to respond to issues raised by public submissions to the committee. The committee report recommended that the Bill be passed, subject to two recommendations.

The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 was referred to the committee on 26 March 2015 for inquiry and report. The committee examined provisions of the Bill, including a range of measures to improve Commonwealth criminal justice arrangements. The department appeared before the committee on 20 May 2015 to respond to issues raised by public submissions to the committee. The committee report recommended the Bill be passed, subject to one recommendation.

The Law Enforcement Legislation Amendment (Powers) Bill 2015 was referred to the committee on 14 May 2015 for inquiry and report. The committee examined provisions of the Bill, which will amend the Australian Crime Commission Act 2002 and the Law Enforcement Integrity Commissioner Act 2006 to clarify the questioning powers of the ACC and the Integrity Commissioner and more clearly set out the uses to which material from this questioning may be put. The committee recommended the Bill be passed.

On 27 March 2014, the Classification (Publications Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014 was referred to the Senate Legal and Constitutional Affairs Legislation Committee for report. The committee tabled its report on 27 August 2014 and recommended that the Bill be passed.

Senate Economics References Committee

Inquiry into Digital Currency

On 2 October 2014, the Senate referred an inquiry into digital currency to the Senate Economics References Committee for inquiry and report. The department made a submission to the inquiry outlining how the anonymity and security of digital currencies could be exploited and abused to facilitate the laundering of proceeds of crime and the purchase of illicit goods and services. The submission highlighted the department’s concerns regarding the potential for digital currency to be used to finance terrorism. Options to address the money-laundering and terrorism-financing issues created by the emergence of digital currency payment systems are being considered in the statutory review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

Agency capability reviews

Ahead of the game: Blueprint for the reform of Australian Government administration recommended that all departments undertake a Capability Review, which the department undertook in 2013–14. The Capability Review, released by the APSC in December 2014, found the department to be performing well and highlighted a number of strengths, including the department’s dedicated and highly motivated workforce, its successful financial management in a tight fiscal environment and its ability to mobilise resources and expertise quickly to respond to new challenges. The report also identifies some opportunities where the department can improve. We have identified four themes to focus on in this respect:

Defining our organisational identity

More effectively engaging with stakeholders

Building a culture of evidence-based choices

Embracing risk.

The department has begun a series of capability improvement initiatives relating to these themes, which can be implemented within existing resources.

External audit

During 2014–15 the Australian National Audit Office (ANAO) completed three audits involving the activities of the department.

Administration of the Indigenous Legal Assistance Programme: (tabled Tuesday 17 February 2015) – the audit objective was to assess the effectiveness of the department’s administration of the Indigenous Legal Assistance Programme. The ANAO made one recommendation which was accepted.

Administration of the Natural Disaster Relief and Recovery Arrangements (NDRRA) by Emergency Management Australia: (tabled 30 April 2015) – the audit objective was to assess the effectiveness of the department’s administration of the terms of the NDRRA Ministerial determination. The ANAO made four recommendations, one of which was accepted, and three of which were accepted with qualification.

The award of funding under the Safer Streets Programme: (tabled 4 June 2015) – the audit objective was to assess the effectiveness of the award of funding under the first round of the Safer Streets Programme. The ANAO made five recommendations, four of which were accepted, one of which was noted.

Other external scrutiny

The department has not been the subject of any decisions or reports by the Australian Information Commissioner or Commonwealth Ombudsman that have had, or may have, a significant impact on operations.